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Mainland 12 Monday, March 21, 2016 The San Juan Daily <strong>Star</strong> Where Merrick Garland Stands: A Close Look at His Judicial Record By ADAM LIPTAK Judge Merrick B. Garland, President Obama’s Supreme Court nominee, has achieved a rare distinction in a polarized era. He has sat on a prominent appeals court for almost two decades, participated in thousands of cases, and yet earned praise from across the political spectrum. A look at a substantial sample of his opinions starts to supply some answers about how he managed this unlikely feat. His writings reflect an able and modest judge with a limited conception of his role working on a docket largely lacking in cases on controversial social issues. His most charged cases, involving national security and campaign finance, were as likely to disappoint liberals as to please them. He has repeatedly voted against detainees at Guantánamo Bay, Cuba, and he joined the Citizens United decision that gave rise to “super PACs.” In more run-of-the-mill cases, he was apt to side with workers claiming employment discrimination and against criminal defendants who said their rights had been violated. Throughout, Judge Garland’s opinions were models of judicial craftsmanship — unflashy, methodically reasoned, attentive to precedent and tightly rooted in the language of the governing statutes and regulations. He appears to apply Supreme Court precedents with punctilious fidelity even if there is reason to think he would have preferred a different outcome and even where other judges might have found room to maneuver. “He’s been a lower-court judge and acted like one for these past 19 years,” said Neal K. Katyal, a former acting United States solicitor general. But that also means that Judge Garland’s opinions provide only glimpses of how he would vote and write if he overcomes Republican objections to fill the seat left vacant by the death of Justice Antonin Scalia. Judge Garland’s court, the United States Court of Appeals for the District of Columbia Circuit, is prestigious but has a limited and idiosyncratic docket tilting toward administrative law. The court seldom confronts the volatile controversies that routinely engage the justices, like abortion, affirmative action, gay rights and the death penalty. The D.C. Circuit does get a steady diet of cases on efforts to combat terrorism and on the role of money in politics, and they illustrate Judge Garland’s moderate, case-by-case approach. He has given mixed signals in cases concerning detainees held at Guantánamo. In 2003, he joined a unanimous three-judge panel in Al Odah v. United States, which ruled that men held at the prison could not challenge their detentions in federal court based on a 1950 Supreme Court precedent. The Supreme Court later rejected the appeals court’s reasoning. In 2008, Judge Garland wrote an opinion for a unanimous three-judge panel concluding that a military tribunal had wrongly classified Huzaifa Parhat, a Chinese Uighur, as an enemy combatant. In the process, Judge Garland rejected an intelligence assessment. “The government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents,” he wrote. “We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has ‘said it thrice’ does not make an allegation true.” In 2014, Judge Garland joined a decision upholding a policy at Guantánamo that allowed guards to probe the genitals of detainees seeking to meet with their lawyers. Supreme Court precedent required great deference to prison officials’ assessments of security protocols, the court said. “The new search procedures promote the safety of the guards and inmates by more effectively preventing the hoarding of medication and the smuggling of dangerous contraband,” the opinion concluded. In campaign finance cases, too, Judge Garland followed Supreme Court precedent in ways that sometimes frustrated liberals and sometimes cheered them. He joined a unanimous opinion in SpeechNow.org v. Federal Election Commission, a 2010 ruling from a nine-judge panel that allowed unlimited contributions to “super PACs,” nominally independent groups that support political candidates. The logic of the Supreme Court’s decision in Citizens United required the move, the appeals court’s opinion said, transforming the political landscape. Citizens United concerned only independent spending by corporations and unions, not rich people. But it said that there was only one justification for restricting political spending: quid pro quo corruption akin to bribery. It added that independent spending could never satisfy that standard. While Judge Garland unhesitatingly extended Citizens United when he believed its logic compelled him to do so, he was unwilling to push further than it required. In July, writing for a unanimous 11-member panel in Wagner v. Federal Election Commission, Judge Garland upheld a ban on campaign contributions from federal contractors, saying the interest in preventing corruption that survived Citizens United warranted the move. That both cases were unanimous suggests that the D.C. Circuit works hard to achieve consensus and confirms findings by political scientists that ideological voting is less common on federal appeals courts than on the Supreme Court. Judge Garland’s voice is most vivid in his infrequent dissents. In 2009, for instance, in Saleh v. Titan Corp., he said the majority had gone badly astray in barring a suit against American military contractors by victims of abuse at the Abu Ghraib prison in Iraq. “The plaintiffs in these cases allege that they were beaten, electrocuted, raped, subjected to attacks by dogs and otherwise abused by private contractors working as interpreters and interrogators,” he wrote, adding that both the Bush and Obama administrations, along with Congress, “have repeatedly and vociferously condemned the conduct at Abu Ghraib as contrary to the values and interests of the United States.” The majority, Judge Garland wrote, had to ignore all of that to fashion “the protective cloak it has cast over the activities of private contractors.” Laurence H. Tribe, a law professor at Harvard, said Judge Garland’s dissenting opinion was “particularly admirable.” “That dissent is a fine example of an opinion that combines impeccable legal analysis with a deep sense of humanity,” he said. Judge Garland served as a law clerk in 1978 and 1979 to Justice William J. Brennan Jr., the liberal icon. But there is little in his own opinions to suggest that he would bring a similarly strong liberal voice to the Supreme Court. Even assuming Judge Garland’s appellate decisions are a good indication of how he would vote on the Supreme Court, the key question is not where he stands in some abstract sense but where he would fit into the ideological array on the current court. President Obama and Judge Merrick B. Garland in the Rose Garden at the White House on Wednesday. Political scientists say the answer is clear. Judge Garland is well to the left of Justice Anthony M. Kennedy, the member of the court at its ideological center and the one who often holds the controlling vote. A Supreme Court including Judge Garland would contain a five-member liberal bloc and put either him or perhaps Justice Stephen G. Breyer, the most conservative liberal, in what had been Justice Kennedy’s pivotal spot. Not all of the justices’ votes are predictable, of course, and their alliances can shift. Judge Garland, a former prosecutor, leans slightly to the right in criminal cases, for instance. On the other hand, he appears to be more sensitive to press freedom than any member of the current Supreme Court. In 2005, he dissented from the appeals court’s decision not to rehear a determination that several reporters, including one from The New York Times, could be held in contempt for refusing to disclose their confidential sources in an invasion of privacy suit brought against the government by Wen Ho Lee, an atomic scientist once suspected of espionage. The ruling, Judge Garland wrote, would “routinely succeed in putting reporters who receive whistle-blower leaks to the choice of testifying or going to jail.” He said requests for reporters’ sources should be granted only if the litigant’s interest in learning the information outweighed the public interest in protecting reporters’ access to information.
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